The Gazette 1986

GAZETTE

JULY/AUGUST

Fatal Injuries And Title To Sue:

The Need For Reform

John P.M. White, B.C.L., LL.B., LL.M. (Harvard), B.L.

College Lecturer in Law, Department of Law, University College, Cork.

he purpose of this article is to consider whether the

definition of the persons entitled to sue under the

Fatal Injuries provisions of Part IV of the Civil Liability

Act, 1961, ought to be amended and to examine the

position under the present law of a woman who has

been living with a man outside matrimony, been

dependent upon him and loses such dependency as a

result of his tortiously occasioned death.

Actual financial dependency on the deceased by a

claimant has never, of itself, been recognised in the

legislation governing recovery by dependants for

wrongful death as being sufficient to maintain a claim

against the wrongdoer in respect of such loss of

dependency. Something more is required, namely, the

existence of a family-type relationship between the

deceased and the claimant. The Fatal Accidents Act,

1846, which first introduced a civil remedy in respect of

wrongful death, restricted the class of competent

claimants for compensation to persons who had a close

family relationship with the deceased

. The preamble,

indeed, described the statute as "An Act for

compensating the families of persons killed by

accidents". Recovery was allowed only to the spouse,

parents, grandparents, children, grandchildren, step-

parents and stepchildren of the deceased

. The class of

relatives entitled to recover has been gradually extended

by the legislatures in both England and Ireland. In

England, the Law Reform (Miscellaneous Provisions)

Act, 1934, provided that a person should "be deemed to

be the parent or child of the deceased person notwith-

standing that he was only related to him illegitimately or

in consequence of adoption", the adoption having been

made under an adoption order made in the United

Kingdom

. The Fatal Injuries Act, 1956, which repealed

and replaced the Fatal Accidents Acts, 1846 to 1908 in

the Republic of Ireland, extended the right to sue to

brothers and sisters and half-brothers and half-sisters of

the deceased

. It further provided that in deducing any

relationship for the purpose of establishing title to sue

under that Act a person adopted under the Adoption

Act, 1952 should be considered the legitimate offspring

of the adopter or adopters and, subject to that

provision, that an illegitimate person should be

considered the legitimate offspring of his mother and

reputed father. Significantly, it also provided that "A

person

in loco parentis

to another shall be considered

the parent of that other." This last provision is

important moving, as it did, towards a recognition that

entitlement to sue should depend upon the existence of

de facto

dependency of the claimant on the deceased

arising out of a family-type relationship rather than

upon degrees of kindred. This particular provision

would be of importance, for example, where the parent

of a child adopted outside the jurisdiction is wrongfully

killéd and the child wishes to sue in respect of his death.

The most glaring omission from such provisions,

however, relates to the case where the deceased and the

claimant lived as husband and wife, but outside the

bonds of matrimony, where, notwithstanding

de facto

dependency and the existence of a family-type

relationship, recovery is denied such a claimant. In K. -

J.M.P. Co. Ltd.

Cairns, L.J. rightly observed in

relation to the similar lacuna which existed in English

law at that time: "[W]e are struck, as was the judge, by

the fact that although Parliament in 1934 extended the

benefit of the Fatal Accidents Acts, 1846 to 1959 to

illegitimate children, the Acts still make no provision

for a woman who, outside matrimony, has lived with a

man for many years, depended on him and mothered his

children.

The injustice of this omission is self-evident. The

dependency is just as real and the natural ties that bind

just as strong in such a situation as if the deceased and

claimant had gone through a ceremony of marriage.

The objection that such an extra-marital union does not

confer a legally enforceable obligation upon the

partners to support each other is a matter which may be

considered in assessing the measure of damages but is

not of itself sufficient to deny title to sue in the first

instance. Moreover, absence of a legally enforceable

obligation to support between the deceased and the

claimant has not prevented the remedy being accorded

in other situations such as, for example, where the

relationship between the deceased and the claimant is

that of brother and sister.

The Fatal Injuries Provisions of Part IV of the Civil

Liability Act, 1961, which replaced the Act of 1956 and

made no extension of the category of competent

claimants

. However, in England, the Fatal Accidents

Act, 1959 extended recovery under the Fatal Accidents

Acts, 1846 to 1959 to any person who was, or was the

issue of, a brother, sister, uncle or aunt of the

deceased

. Moreover, relatives by affinity were afforded

the same right to sue as were relatives by consanguinity

and relatives of the half-blood were afforded the same

right to sue as relatives of the whole-blood. Parliament

in England repealed and replaced the Acts of 1846 to

1959 by the Fatal Accidents Act, 1976, but the

opportunity for further reform was not grasped

. The

Administration of Justice Act, 1982 has, however,

finally brought about this desirable reform of the law in

England by amending the Act of 1976 to allow recovery

to "Any person who — (i) was living with the deceased

in the same household immediately before the death of

the deceased; and (ii) had been living with the deceased

in the same household for at least two years before that

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